(40)  The Edinburgh Law Review in the House of Lords

The first judicial citation of The Edinburgh Law Review occurred in the speech of Lord Hope of Craighead in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd, 16 July 1998, 1998 SLT 992, a decision of the House of Lords on the law of contract, unjustified enrichment and irritancy in leases. Lord Hope said (at 997L- 998E): My attempt in Morgan Guaranty Trust Company of New York v. Lothian Regional Council 1995 S.C. 151, 155C-D to describe the remedies which are available to redress an unjustified enrichment has attracted some criticism: Robin Evans-Jones and Phillip Hellwege, Some Observations on the Taxonomy of Unjustified Enrichment in Scots Law (1998) Edinburgh Law Review 180, 196-197. Underlying that criticism is a desire that the law of unjustified enrichment should develop in a uniform way, and a concern that if the law continues to express the remedies in terms of restitution, repetition and recompense it will inhibit that development. I sympathise with the desire that the law of unjustified enrichment should be unified in order to detach it from the confusing subdivisions which have arisen from its explanation in terms of quasi-contract. In his important contribution to this debate Restitution: A View of the Scots Law (1985) Current Legal Problems 57, 63 Professor Peter Birks said that the worst consequence of division by benefit received is the impression given that the causes of action differ depending on the form in which an enrichment is received and that the only cure was to unify the subject. I sought to make my position clear when I said in the Morgan Guaranty case at p. 155E that the important point was that these actions were all means to the same end, which is to redress an unjustified enrichment upon the broad equitable principle nemo debet locupletari aliena jactura.       It is an important part of this reasoning to recognise that the obligation to redress the enrichment arises not from contract, but from the separate duty which arises in law from the absence of a legal ground to justify its retention: see Stair, Institutions, I.7.7. On the other hand it does not seem to me to be inconsistent with the broad principle of the law of unjustified enrichment for the various situations in which redress may be sought to be expressed in terms of remedies. In Shilliday v. Smith 2 April 1998, the Lord President pointed out that repetition, restitution, reduction and recompense are simply examples of remedies which the courts grant to reverse an unjust enrichment, depending on the way in which the particular enrichment has arisen. It may be unrealistic to expect those who practise in the courts to depart from such terminology. In the context of the written pleadings which are used in our practice the pursuer is expected to state the nature of the remedy which he seeks, as well as the legal basis for it. For my part I see no harm in the continued use of these expressions to describe the various remedies, so long as it is understood that they are being used merely to describe the nature of the remedy which the court is being asked to provide in order to redress the enrichment. The event which gives rise to the granting of the remedy is the enrichment. In general terms it may be said that the remedy is available where the enrichment lacks a legal ground to justify the retention of the benefit. In such circumstances it is held to be unjust. Shilliday v Smith is reported at 1998 SLT 976.